Thomas v. Tylutki ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robin Lorenzo Thomas, Jr., No. CV-21-00302-TUC-JCH 10 Plaintiff, ORDER 11 v. 12 T. Tylutki, et al., 13 Defendants. 14 15 Before the Court is Plaintiff's "Motion to Amend or Alter Judgment" (Doc. 44). 16 Plaintiff's motion is denied for the following reasons. 17 I. Background 18 In July 2021, pro se Plaintiff filed a complaint alleging, among other things, a threat- 19 to-safety or failure-to-protect claim against Defendant. (See Doc. 2; Doc. 12.) In October 20 2022, the Court granted summary judgment for Defendant because Plaintiff failed to 21 exhaust administrative remedies. (Doc. 41 at 9.) Specifically, Plaintiff failed to comply 22 with an administrative order governing the prisoner grievance process. (Id. at 6.) Plaintiff 23 was required to file a grievance by September 4, 2020, but did not file until September 14, 24 2020. (Id.) Plaintiff now asks the Court to amend or alter its summary judgment for 25 Defendant, and Defendant has responded. (Doc. 44 at 1; Doc. 45.) 26 II. Legal Standard 27 Federal Rule of Civil Procedure 59(e) permits a litigant to file a reconsideration 28 "motion to alter or amend a judgment" within 28 days after entry of the judgment. The 1 Court has four basic grounds on which to grant a reconsideration motion under Rule 59(e): 2 (1) "to correct manifest errors of law or fact"; (2) to consider "newly discovered or 3 previously unavailable evidence"; (3) "to prevent manifest injustice"; or (4) to address "an 4 intervening change in controlling law." Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 5 (9th Cir. 2011). Reconsideration is "an extraordinary remedy, to be used sparingly in the 6 interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Est. of 7 Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations and internal quotation marks 8 omitted); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). The decision 9 whether to grant a motion for reconsideration is within the sound discretion of the 10 court. Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 11 F.3d 1041, 1046 (9th Cir. 2003). 12 III. Analysis 13 Plaintiff argues Defendant "is at fault for not allowing Plaintiff to exhaust 14 administrative remedies." (Doc. 44 at 1.) Plaintiff alleges that close examination of 15 Defendant's motion for summary judgment reveals that Defendants received Plaintiff's 16 grievance and failed to process it. (Doc. 44 at 1–2.) Plaintiff has already had an opportunity 17 to respond to the motion for summary judgment ("MSJ"), so disputing it now is untimely. 18 (See Doc. 23.) Plaintiff also misstates the MSJ and misunderstands the Court's reason for 19 granting it. First, the MSJ does not say that there is no record of Plaintiff's informal 20 complaint being "processed or responded to." (Doc. 44 at 1–2.) The MSJ only says there is 21 no record of Plaintiff's informal complaint being responded to. (See Doc. 20 at 5 22 ("[Plaintiff] submitted an Informal Complaint dated August 6, 2020, however there is no 23 record of a response by prison personnel.").) Plaintiff may be confusing the MSJ with a 24 declaration attached to Defendant's statement of facts. (See Doc. 21-1 at 26.) 25 Second, the Court granted Defendant's MSJ because Plaintiff's September 14, 2020 26 grievance was untimely, not because it was never received. (Doc 41 at 9.) To exhaust 27 administrative remedies, a prisoner who receives no reply to their informal complaint must 28 timely file a formal grievance. (Doc. 21-1 at 12.) In Plaintiff's case, that meant filing a || grievance by September 4, 2020. Plaintiff instead chose to file on September 14, 2020. || Plaintiff never directly responded to this point in his response to the MSJ. (See Doc. 23 generally.) In fact, Plaintiff now appears to concede his grievance was untimely, but still 4|| offers no explanation. (See Doc. 44 at 3 ("I cannot a[rg]ue that my grievance was untimely, 5 || but when does ADCRR admit to the damage done on their behalf.").) Plaintiff also vaguely || asserts that a "good reason for a[n] untimely grievance may have been due to me being in 7 || detention lock up and not having access to grievance form or ADCRR policies and having 8 || to rely on staff members to bring everything that you request[,] [w]hich in some matters || took days or weeks to receive." (Doc 44 at 2.) Plaintiff is correct that being unable to access 10 || the grievance process may be a good reason for an untimely grievance. But even if Plaintiff 11 || provided credible evidence that he was prevented from complying with the September 4, 12 || 2020 deadline, Plaintiff did not raise this argument despite its availability to him when he 13 || responded to the MSJ. (See Doc. 23 generally.) He may not now relitigate the issue. 14 In short, Plaintiff identifies no errors of fact or law, no newly discovered or 15 || previously unavailable evidence, no injustice, and no intervening changes of law to support || his motion. The Court therefore will not provide the extraordinary remedy Plaintiff seeks. IV. Order 18 For the reasons above, 19 IT IS ORDERED DENYING Plaintiffs "Motion to Amend or Alter 20 || Judgment" (Doc. 44). 21 Dated this 6th day of December, 2022. 22 23 □ 24 9S MH herb onorable John C. Hinderaker 25 United States District Judge 26 27 28 -3-